Mlombo v Fourie
Mlombo v Fourie[1] is an important and contentious case in South African property law. It was heard before Trollip J in the Transvaal Provincial Division on May 29, 1964.
Facts[edit]
Mlombo, the owner of the property, instituted the rei vindicatio action against Fourie for having fraudulently ceased to possess it.
Judgment[edit]
The court ordered Fourie to make good the value of the lost property.
Criticism[edit]
The decision has been criticised by legal commentators for having blurred the distinction between the rei vindicatio and the actio ad exhibendum.[2][3] The rei vindicatio, or vindicatory action, is a remedy available to an owner to reclaim his property, from wherever it is found and from whosoever is holding it, entitling him to "exclusive possession."[4] The true application of the remedy is aimed merely at restoring proprietary interest; it does not include damages.[5] The actio ad exhibendum, which is a delictual remedy, usually does include a claim for damages. By awarding damages in terms of the rei vindicatio, which is a restorative proprietary remedy, the court failed to appreciate this distinction.
See also[edit]
References[edit]
Books[edit]
- PJ Badenhorst, JM Pienaar and H Mostert Silberberg and Schoeman's The Law of Property 5 ed (2006).
- H Mostert and A Pope (eds) The Principles of The Law of Property in South Africa 1 ed (2010).
Cases[edit]
- Mlombo v Fourie 1964 (3) SA 350 (T).
Notes[edit]
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